Preview
Electronically Filed
12/27/2023 12:00 AM
Hidalgo County District Clerks
Reviewed By: Armando Cantu
C-5296-23-J
NO. ______________
GERARDO GERRY LOZANO § IN THE DISTRICT COURT
Contestant, §
§
V. § ______ JUDICIAL DISTRICT
§
DAVID WHITE §
Contestee. § OF HIDALGO COUNTY, TEXAS
CONTESTANT'S ORIGINAL PETITION WITH REQUEST FOR DISCLOSURE
TO THE HONORABLE JUDGE OF SAID COURT:
NOW COMES GERARDO GERRY LOZANO, hereinafter called Contestant,
complaining of and about DAVID WHITE, hereinafter called Contestee, and shows unto the Court
the following:
DISCOVERY CONTROL PLAN LEVEL
1. Pursuant to Rule 190.1 of the Texas Rules of Civil Procedure, Contestant intends to
conduct this case under Discovery Level 3.
PARTIES AND SERVICE
2. Contestant, GERARDO GERRY LOZANO, is an Individual whose resides in the City of
Edinburg, Hidalgo County, Texas.
3. The last three numbers of GERARDO G. LOZANO’s driver's license number are 878. The
last three numbers of GERARDO G LOZANO’s social security number are 531.
4. Contestee, DAVID WHITE, an Individual who is a resident of Hidalgo County, Texas,
may be served with process at his home at the following address: 819 Park Circle, Edinburg Texas
78539, or wherever he may be found. Service of said Contestee as described above can be effected
Electronically Filed
12/27/2023 12:00 AM
Hidalgo County District Clerks
Reviewed By: Armando Cantu
C-5296-23-J
by personal delivery.
JURISDICTION AND VENUE
5. Contestant brings this action pursuant to Title 14, Chapter 232, Texas Election Code, to
contest the results of the Hidalgo County City Council Election held November 7, 2023, to select
the City Council Member, Place 4 of the City of Edinburg, for which Contestant, Contestee,
were the only candidates. This election contest is timely filed because it is filed not later than
30th day after the date the official result of the contested election was determined. Texas Election
Code §232.008
6. This court has exclusive jurisdiction of this contest pursuant to Texas Election Code
§221.002.
7. Venue in Hidalgo County is proper for this election contest pursuant to Texas Election
Code §232.006(c).
ELECTION CONTEST
8. On December 3, 2020, a final and official canvas and certification of the November 7, 2023
general election results for City Councilmember Place 4 was completed by the City of Edinburg.
The certified vote allocation shows 3,334 votes for Contestee David White and 3,323 votes for
Gerardo G. Lozano. Contestee was declared the winner because he received 11 more votes than
Contestant.
9. Contestant will show on the trial of this cause that this was not the true outcome of the
election for the reasons set forth below. Tex. Elec. Code §221.003.
10. Contestant will show that numerous votes were illegally cast by individuals who were
registered to vote at an address not a residence and not their residence as defined by the Texas
Elections Code and therefore were not legally registered to vote in the election for the position of
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Electronically Filed
12/27/2023 12:00 AM
Hidalgo County District Clerks
Reviewed By: Armando Cantu
C-5296-23-J
Place 4 Councilmember of the City of Edinburg. The votes, therefore, cast by these individuals
who were not legally registered to vote were illegal and cannot be counted. Tex.Elec.Code
§§11.001(3), 11.002 and 13.002. Had these illegal votes not been counted a different and correct
result would be obtained in the election.
11. Contestant will also show that numerous voters casting votes during early vote and on
election day were assisted at the time that they voted even though the voters were not eligible for
assistance in reading or completing the ballot, in violation of the Texas Elections Code.
Tex.Elec.Code §§64.032, 64.0321 and 86.010(a). The votes therefore case by these persons who
were assisted in violation of the Texas Elections Code are therefore illegal and cannot be counted.
Had these illegal votes not been counted a different and correct result would be obtained in the
election.
12. Contestant will also show that numerous voters casting votes during early vote and on
election day received assistance that was not limited to that authorized by the Texas Election Code
at a polling place, Tex. Elec. Code § 86.010(b). Said illegal assistance included encouraging the
voter how to vote and/or even pressuring or coercing votes in violation of the Texas Elections
Code. The votes therefore case by these persons who were assisted in violation of the Texas
Elections Code are therefore illegal and cannot be counted. Had these illegal votes not been
counted a different and correct result would be obtained in the election.
13. Contestant will also show that numerous mail-in ballots that were counted should not have
been counted due to numerous violations of various requirements in the Texas Elections Code.
The following violations of the Texas Elections Code occurred at the time that these numerous
mail-in ballots were cast:
(a) the voter is not eligible to vote by mail, Tex. Elec. Code §§ 82.001, 82.002, 82.003
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Electronically Filed
12/27/2023 12:00 AM
Hidalgo County District Clerks
Reviewed By: Armando Cantu
C-5296-23-J
and 86.001(c);
(b) the voter did not sign the application for a mail-in ballot, Tex. Elec. Code § 84.001;
(c) the voter was assisted in completing or signing the mail-in ballot application by a person
other than the early voting clerk or a deputy but the witness failed to provide the
information required by Tex. Elec. Cod §84.003(a) or (b);
(e) the voter is not eligible for assistance in reading or completing the ballot but was
assisted in doing so, Tex. Elec. Code §§64.031, 64.0321, 86.010(a);
(f) the assistant failed to sign the oath prescribed by Tex. Elec. Code §64.034, see Tex. Elec.
Code §86.010(c);
(g) the assistant failed to enter his per her “signature, printed name, and residence address
on the official carrier envelope of the voter,” Tex. Elec. Code §86.010(e);
(h) the voter permitted another person to take possession of the voter’s ballot and carrier
envelope to deposit same in the mail or with a common or contract carrier for delivery to
the elections office but such person failed to “provide the person’s signature, printed name,
and residence address on the reverse side of the envelope,” Tex. Elec. Code §86.0051(b);
(i) the voter did not seal the carrier envelope containing his or her ballot before the ballot
and envelope left the voter’s hand, Tex. Elec. Code, § 86.005;
(j) the voter received assistance that was not limited to that authorized by the Texas
Election Code at a polling place, Tex. Elec. Code § 86.010(b), including encouraging the
voter how to vote or even pressuring or coercing votes;
(k) the person providing assistance prepared the voter’s ballot “without direction from the
voter.” Tex. Elec. Code § 64.036(a)(2).
(l) the mail ballot carrier envelope did not contain the signature of the alleged voter, Tex.
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Electronically Filed
12/27/2023 12:00 AM
Hidalgo County District Clerks
Reviewed By: Armando Cantu
C-5296-23-J
Elec. Code § 86.005.
(m) the alleged “mark” of the alleged mail ballot voter was not witnessed by any person,
Tex. Elec. Code § 86.005.
(n) the signature of the alleged voter on the carrier envelope is not the signature of the
actual voter, as the signature of the voter on his application for a mail ballot is completely
different than the alleged signature of the voter on the carrier envelope containing the mail
ballot that was cast, Tex. Elec. Code §§ 86.005 and 86.041(b)(2).
(o) the voter’s mail ballot was not delivered by mail, common carrier or in person pursuant
to the procedures specified by the Texas Elections Code, Tex. Elec. Code §86.006, and
regulations of the Secretary of State.
14. Under the Texas Elections Code, the mail-in ballots that were cast in violation of the Texas
Elections Code as alleged in paragraph 13 were illegal and therefore cannot be counted. Had these
mail in ballots not been counted a different and correct result would be obtained in the election.
15. Because the number of illegal votes cast exceeds the difference in the total votes cast for
the Contestant and those cast for the Contestee, the Court cannot ascertain the true outcome of the
election and, the Court must declare the election void and order a new election., Tex. Elec. Code
§221.0012.
NOTICE OF DISQUALIFICATION
16. Pursuant to Texas Election Code §231.004, notice is hereby given that this matter
involves territory covered by the Hidalgo County District Court. As such, the District Judge of
this Court is statutorily disqualified. Contestant requests that the District Clerk promptly notify
the Judge of this filing so that a special judge may be assigned to hear this matter. Texas Election
Code §231.004
5
Electronically Filed
12/27/2023 12:00 AM
Hidalgo County District Clerks
Reviewed By: Armando Cantu
C-5296-23-J
REQUEST FOR DISCLOSURE
17. Under Texas Rules of Civil Procedure 194, Contestant requests Contestee disclose,
within 50 days of the service of this request, the information and materials, described in Rule
194.2.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Contestant, GERARDO G. LOZANO,
respectfully prays:
a. That this cause be set for trial and given precedence over other causes as provided
by law;
b. That notice of filing of the petition and of the hearing date be given to all parties;
c. That, after hearing the evidence, the Court find that the total number of illegal votes
cast in the election exceeds the difference between the total number votes cast for Contestant and
the total number of votes cast for the Contestee;
d. That because the total number illegal votes cast in the election exceeds the
difference between the Contestant and Contestee, the Court find that it cannot determine the true
outcome of the November 7, 2023, election for the Councilmember Place 4 of the City of Edinburg
e. That the Court determine that the election be declared void as it is impossible to
ascertain the true results and an order issue for a new election for the contested office pursuant to
§232.041, Texas Election Code; and
f. That Contestant be awarded costs of this action, including attorney fees, and such
other and further relief to which Contestant may be entitled at law or in equity.
Respectfully submitted,
6
Electronically Filed
12/27/2023 12:00 AM
Hidalgo County District Clerks
Reviewed By: Armando Cantu
C-5296-23-J
GILBERTO HINOJOSA & ASSOCIATES, PC
By: /s/ Gilberto Hinojosa
Gilberto Hinojosa
Texas Bar No. 09701100
Email: ghinojosa@ghinojosalaw.net
531 E. St. Francis St.
Brownsville, Texas 78520
Tel. (956) 544-4218
Fax. (956) 544-1335
ESCOBAR LAW FIRM, PLLC
/s/ Carlos Escobar
Carlos Escobar
Texas Bar No. 24025351
E-Mail – carlos@escobarlawfirm.com
100 South Bicentennial Blvd
McAllen, Texas 78501
Tel. (956) 631 3384
Attorneys for Contestant,
GERARDO G. LOZANO
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Preview
Electronically Filed 12/27/2023 12:00 AM Hidalgo County District Clerks Reviewed By: Armando Cantu C-5296-23-J NO. ______________ GERARDO GERRY LOZANO § IN THE DISTRICT COURT Contestant, § § V. § ______ JUDICIAL DISTRICT § DAVID WHITE § Contestee. § OF HIDALGO COUNTY, TEXAS CONTESTANT'S ORIGINAL PETITION WITH REQUEST FOR DISCLOSURE TO THE HONORABLE JUDGE OF SAID COURT: NOW COMES GERARDO GERRY LOZANO, hereinafter called Contestant, complaining of and about DAVID WHITE, hereinafter called Contestee, and shows unto the Court the following: DISCOVERY CONTROL PLAN LEVEL 1. Pursuant to Rule 190.1 of the Texas Rules of Civil Procedure, Contestant intends to conduct this case under Discovery Level 3. PARTIES AND SERVICE 2. Contestant, GERARDO GERRY LOZANO, is an Individual whose resides in the City of Edinburg, Hidalgo County, Texas. 3. The last three numbers of GERARDO G. LOZANO’s driver's license number are 878. The last three numbers of GERARDO G LOZANO’s social security number are 531. 4. Contestee, DAVID WHITE, an Individual who is a resident of Hidalgo County, Texas, may be served with process at his home at the following address: 819 Park Circle, Edinburg Texas 78539, or wherever he may be found. Service of said Contestee as described above can be effected Electronically Filed 12/27/2023 12:00 AM Hidalgo County District Clerks Reviewed By: Armando Cantu C-5296-23-J by personal delivery. JURISDICTION AND VENUE 5. Contestant brings this action pursuant to Title 14, Chapter 232, Texas Election Code, to contest the results of the Hidalgo County City Council Election held November 7, 2023, to select the City Council Member, Place 4 of the City of Edinburg, for which Contestant, Contestee, were the only candidates. This election contest is timely filed because it is filed not later than 30th day after the date the official result of the contested election was determined. Texas Election Code §232.008 6. This court has exclusive jurisdiction of this contest pursuant to Texas Election Code §221.002. 7. Venue in Hidalgo County is proper for this election contest pursuant to Texas Election Code §232.006(c). ELECTION CONTEST 8. On December 3, 2020, a final and official canvas and certification of the November 7, 2023 general election results for City Councilmember Place 4 was completed by the City of Edinburg. The certified vote allocation shows 3,334 votes for Contestee David White and 3,323 votes for Gerardo G. Lozano. Contestee was declared the winner because he received 11 more votes than Contestant. 9. Contestant will show on the trial of this cause that this was not the true outcome of the election for the reasons set forth below. Tex. Elec. Code §221.003. 10. Contestant will show that numerous votes were illegally cast by individuals who were registered to vote at an address not a residence and not their residence as defined by the Texas Elections Code and therefore were not legally registered to vote in the election for the position of 2 Electronically Filed 12/27/2023 12:00 AM Hidalgo County District Clerks Reviewed By: Armando Cantu C-5296-23-J Place 4 Councilmember of the City of Edinburg. The votes, therefore, cast by these individuals who were not legally registered to vote were illegal and cannot be counted. Tex.Elec.Code §§11.001(3), 11.002 and 13.002. Had these illegal votes not been counted a different and correct result would be obtained in the election. 11. Contestant will also show that numerous voters casting votes during early vote and on election day were assisted at the time that they voted even though the voters were not eligible for assistance in reading or completing the ballot, in violation of the Texas Elections Code. Tex.Elec.Code §§64.032, 64.0321 and 86.010(a). The votes therefore case by these persons who were assisted in violation of the Texas Elections Code are therefore illegal and cannot be counted. Had these illegal votes not been counted a different and correct result would be obtained in the election. 12. Contestant will also show that numerous voters casting votes during early vote and on election day received assistance that was not limited to that authorized by the Texas Election Code at a polling place, Tex. Elec. Code § 86.010(b). Said illegal assistance included encouraging the voter how to vote and/or even pressuring or coercing votes in violation of the Texas Elections Code. The votes therefore case by these persons who were assisted in violation of the Texas Elections Code are therefore illegal and cannot be counted. Had these illegal votes not been counted a different and correct result would be obtained in the election. 13. Contestant will also show that numerous mail-in ballots that were counted should not have been counted due to numerous violations of various requirements in the Texas Elections Code. The following violations of the Texas Elections Code occurred at the time that these numerous mail-in ballots were cast: (a) the voter is not eligible to vote by mail, Tex. Elec. Code §§ 82.001, 82.002, 82.003 3 Electronically Filed 12/27/2023 12:00 AM Hidalgo County District Clerks Reviewed By: Armando Cantu C-5296-23-J and 86.001(c); (b) the voter did not sign the application for a mail-in ballot, Tex. Elec. Code § 84.001; (c) the voter was assisted in completing or signing the mail-in ballot application by a person other than the early voting clerk or a deputy but the witness failed to provide the information required by Tex. Elec. Cod §84.003(a) or (b); (e) the voter is not eligible for assistance in reading or completing the ballot but was assisted in doing so, Tex. Elec. Code §§64.031, 64.0321, 86.010(a); (f) the assistant failed to sign the oath prescribed by Tex. Elec. Code §64.034, see Tex. Elec. Code §86.010(c); (g) the assistant failed to enter his per her “signature, printed name, and residence address on the official carrier envelope of the voter,” Tex. Elec. Code §86.010(e); (h) the voter permitted another person to take possession of the voter’s ballot and carrier envelope to deposit same in the mail or with a common or contract carrier for delivery to the elections office but such person failed to “provide the person’s signature, printed name, and residence address on the reverse side of the envelope,” Tex. Elec. Code §86.0051(b); (i) the voter did not seal the carrier envelope containing his or her ballot before the ballot and envelope left the voter’s hand, Tex. Elec. Code, § 86.005; (j) the voter received assistance that was not limited to that authorized by the Texas Election Code at a polling place, Tex. Elec. Code § 86.010(b), including encouraging the voter how to vote or even pressuring or coercing votes; (k) the person providing assistance prepared the voter’s ballot “without direction from the voter.” Tex. Elec. Code § 64.036(a)(2). (l) the mail ballot carrier envelope did not contain the signature of the alleged voter, Tex. 4 Electronically Filed 12/27/2023 12:00 AM Hidalgo County District Clerks Reviewed By: Armando Cantu C-5296-23-J Elec. Code § 86.005. (m) the alleged “mark” of the alleged mail ballot voter was not witnessed by any person, Tex. Elec. Code § 86.005. (n) the signature of the alleged voter on the carrier envelope is not the signature of the actual voter, as the signature of the voter on his application for a mail ballot is completely different than the alleged signature of the voter on the carrier envelope containing the mail ballot that was cast, Tex. Elec. Code §§ 86.005 and 86.041(b)(2). (o) the voter’s mail ballot was not delivered by mail, common carrier or in person pursuant to the procedures specified by the Texas Elections Code, Tex. Elec. Code §86.006, and regulations of the Secretary of State. 14. Under the Texas Elections Code, the mail-in ballots that were cast in violation of the Texas Elections Code as alleged in paragraph 13 were illegal and therefore cannot be counted. Had these mail in ballots not been counted a different and correct result would be obtained in the election. 15. Because the number of illegal votes cast exceeds the difference in the total votes cast for the Contestant and those cast for the Contestee, the Court cannot ascertain the true outcome of the election and, the Court must declare the election void and order a new election., Tex. Elec. Code §221.0012. NOTICE OF DISQUALIFICATION 16. Pursuant to Texas Election Code §231.004, notice is hereby given that this matter involves territory covered by the Hidalgo County District Court. As such, the District Judge of this Court is statutorily disqualified. Contestant requests that the District Clerk promptly notify the Judge of this filing so that a special judge may be assigned to hear this matter. Texas Election Code §231.004 5 Electronically Filed 12/27/2023 12:00 AM Hidalgo County District Clerks Reviewed By: Armando Cantu C-5296-23-J REQUEST FOR DISCLOSURE 17. Under Texas Rules of Civil Procedure 194, Contestant requests Contestee disclose, within 50 days of the service of this request, the information and materials, described in Rule 194.2. PRAYER WHEREFORE, PREMISES CONSIDERED, Contestant, GERARDO G. LOZANO, respectfully prays: a. That this cause be set for trial and given precedence over other causes as provided by law; b. That notice of filing of the petition and of the hearing date be given to all parties; c. That, after hearing the evidence, the Court find that the total number of illegal votes cast in the election exceeds the difference between the total number votes cast for Contestant and the total number of votes cast for the Contestee; d. That because the total number illegal votes cast in the election exceeds the difference between the Contestant and Contestee, the Court find that it cannot determine the true outcome of the November 7, 2023, election for the Councilmember Place 4 of the City of Edinburg e. That the Court determine that the election be declared void as it is impossible to ascertain the true results and an order issue for a new election for the contested office pursuant to §232.041, Texas Election Code; and f. That Contestant be awarded costs of this action, including attorney fees, and such other and further relief to which Contestant may be entitled at law or in equity. Respectfully submitted, 6 Electronically Filed 12/27/2023 12:00 AM Hidalgo County District Clerks Reviewed By: Armando Cantu C-5296-23-J GILBERTO HINOJOSA & ASSOCIATES, PC By: /s/ Gilberto Hinojosa Gilberto Hinojosa Texas Bar No. 09701100 Email: ghinojosa@ghinojosalaw.net 531 E. St. Francis St. Brownsville, Texas 78520 Tel. (956) 544-4218 Fax. (956) 544-1335 ESCOBAR LAW FIRM, PLLC /s/ Carlos Escobar Carlos Escobar Texas Bar No. 24025351 E-Mail – carlos@escobarlawfirm.com 100 South Bicentennial Blvd McAllen, Texas 78501 Tel. (956) 631 3384 Attorneys for Contestant, GERARDO G. LOZANO 7